The view taken by the courts in collective dismissals following the labor reform
Just over one year has passed since the labor reform entered into force yet if we take a look at the vast number of judgments that have interpreted it, it seems as though it has been around for a lot longer. Undoubtedly, the most significant judgments when interpreting the law—due to their novel nature—are those referring to the highly modified collective dismissal proceeding.
It appears that the lawmakers were not able—due to the huge number of different cases that are possible—to provide for all scenarios, problems and difficulties that can arise in a collective dismissal proceeding.
Accordingly, it has fallen to the courts to cover the gaps that the lawmakers were unable to fill, adopting in some cases—given the need to hand down consistent judgments—the very role of lawmaker. There are many examples of this but here we will highlight three such cases.
First of all, although groups of companies are certainly common in the Spanish economy, it has been the courts that have recognized the possibility of negotiating collective dismissals at group level, although to do so, they have had to use the figure of the single integrated enterprise (scenario in which the group acts as a single employer even though there are formally different companies).
Another prime example of this phenomenon is the fact that it is the courts that are ruling on the effect that the upholding of a claim challenging a collective dismissal has on employees who did not want to be parties to the claim.
Lastly, the lawmakers established maximum time limits on the consultation period, without providing for the possibility that the negotiations themselves may require the negotiating parties to exceed such limits. The fact is that the courts themselves—in view of claims in which one of the parties has sought to have the proceedings set aside precisely because such maximum time limit was exceeded—have established the possibility of the consultation period being extended.
The above examples, to name but a few, raise questions as to whether the legislation sufficiently clarifies the concepts and situations that can arise in practice, and whether some of the effects sought by the reform are being distorted by the courts.